New York Domestic Relations Cammett Spring 2015
I. Marriage NY DRL §10
A. Structure of Court System: Breakdown of the Unified Court System
Subject Matter Jurisdiction- which court can hear which issue?
1. Supreme Court-
. Dissolution of Marriage-
. Any family issue may be heard here while still married.
. Exclusive jurisdiction to address matters relating to terminating a marriage (divorce,
. Annulment and separation)
. Other concurrent jurisdiction w/Family Court
2. Family Court- matters for non-married peoples. Cases of neglect, delinquency and abuse are ONLY heard here.
•Custody & Visitation
•Abuse & Neglect
3. Surrogate Court: Issues of probate- death of a parent and adoption.
B. State Regulation / Federal role
What are you swearing to when you sign a license- Signing off, under penalty of perjury, that you’ve never been married before.
2. Marriage License (DRL § 13)
a. Absolute Statutory Requirements:
1. Solemnization Requirement – Who can preside? (DRL § 11)
Statutorily enumerated list of officiants
How solemnized – Form of ceremony (DRL § 12)
2. Declare intentions in front of official, and have one witness
3. Time Constraints (DRL §13) – Married within 60 days of license; Waiting period: 24 hours
4. Blood Tests (DRL § 13-AA) (1972)
5. Duties of Clerks (DRL § 15): Role of Gatekeepers -They verify the paperwork for a valid marriage, especially around age of the parties and marital status and verify age requirements are met
b. A marriage licensed is technically required but does not render an otherwise validly solemnized marriage void.
1. Must sign license in front of a witness and
2. The person solemnizing must be valid.
NY DRL 11. WHO CAN SOLEMNIZE
. mayor/city official
NY DRL 12. HOW SOLEMNIZED
. No particular ceremony required
. By clergy or magistrate
. w/ at least one witness
. parties “solemnly declare” to each other
. If no ceremony: solemnly declare written & signed by both parties + two witnesses, acknowledged before judge
NY DRL 13-B. TIME WITHIN WHICH MARRIAGE MAY BE SOLEMNIZED
. License à 24 hours > solemnize < 60 days • armed forces exception . Policy: prevents quickie marriages, makes you stop and think . NY DRL Article 9, read §140 (Annulment) COMMON LAW MARRIAGE Definition of “common law” marriage- A private or informal marriage; an agreement between two parties to live together as husband and wife, and hold themselves out as being married. 4 elements for common law marriage . Capacity to be married [no impediment] . Present agreement to be married [does not have to be express, can infer w/ circumstantial evidence. Point is that BOTH parties have the intention] . Cohabitation, and [this is vague – mostly means that they’re having sex] . holding themselves out to the community as married Legal Common Law Marriage in NY: Common law marriages prior to 1/1/1902 were valid § Banned between 1/1/1902 and 1/1/1908 § Between 1/2/1908 and 4/28/33 are valid (legislative error) § Not recognized as valid after 4/28/33 Common law marriages performed out of state may be valid in NY if: If it was contracted in a jurisdiction that recognizes such marriages; New York will apply the requirements of the other jurisdiction to determine if it is a valid marriage (liberally construed); There are no uniform requirements to establish a common law marriage. Each state has its own requirements to form a valid common law marriage; C. Definition of marriage- 1. Article 3, §10 Marriage is a civil contract, requiring the consent of parties, legally capable of entering into contracts, a valid marriage being valid regardless of the sex of the parties. 10-b Religious Exceptions: Private organizations (religious organizations) do not have to recognize these marriages though. 2. How to invalidate a marriage There is a strong presumption in the law favoring the validity of marriages However: NY DRL Article 2, VOID and VOIDABLE Void ab initio: NY VOID marriages (serious substantive defects): 1. Bigamous, NY DRL §6 NY LAW, VOID A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse. 2. Incestuous unions- NY DRL §5 NY LAW, VOID whether relatives are legitimate or illegitimate: • Ancestor and descendant • Brother an
d its existence must not have been known by either party at the time of the marriage.
c. The physical incapacity must be continuous and incurable (1836) § Physical incapacity includes impotency or another physical or mental problem which prevents consummation of the marriage.
d. If there is a procedure to correct the physical deficiency, the partner must do get the procedure.
4. Force, fraud, or duress:
NY DRL Article 2, Section 7(4)
a. Consent to marriage must be with full knowledge of pertinent facts and must be given of a person's free will
b. Duress is coercion that deprives a person of the ability to exercise free will at the time of the marriage §
c. Threatened/actual use of force to obtain consent is also duress
d. The claimed force, duress, or fraud must be specific to the marital contract and if fraud is claimed, it must be specifically related to the marital relationship
• Rule for Fraud:
Must be vital to marriage relationship
Had to be a material fraud – statement was such a nature, a person wouldn’t have married other person had theynot made the lie
Ordinary Prudent Person
Had to discover within a reasonable time
Had to disavow within a reasonable time
Ceases cohabitation, stops having sex
5. Incurably mentally ill >5 years
. NY DRL Article 2, Section 7(5)
. Requires special conditions in the annulment statute under §141. Action to annul marriage on ground of incurable mental illness for 5 years; procedure; support.
. Three physician (appointed by court) have to agree after thorough examination
. Court can require the non-ill spouse to pay for suitable support care, and maintenance for life from his or her property or income.